That day has arrived. The newly released data, which show the numbers as of June 2006, show that broadband investment and adoption continue to increase dramatically, up 26 percent in the first half of 2006 to a total of 64.6 million lines.

I wanted to quickly follow up on my earlier post regarding Peter Huber's excellent essay about how Net neutrality will lead to a bureaucratic nightmare at the FCC and a lawyer's bonanza once the lawsuits start flying in court. I realized that many of the people engaged in the current NN debate might not have followed the Telecom Act legal wars that took place from 1996-2004 which frame the way both Huber and I think about these issues and why we are so cynical about regulation.

Let's start with the bureaucracy that can be spawned by seemingly simple words. For example, the Telecom Act of 1996 contained some extremely ambiguous language regarding how the FCC should determine the "cost" of various network elements (wires, switches, etc..) that incumbent telecom operators were required to share with their competitors. Now how much legal wrangling could you expect over what the term "cost" meant?

Well, in the years following passage of the Telecom Act, entire forests fell because of the thousands of pages of regulatory and judicial interpretations that were handed down trying to figure out what that word meant. In fact, let's take a quick tally of the paperwork burden the FCC managed to churn out in just three major "competition" rules it issued in an attempt to implement the Telecom Act and define the "cost" of unbundled network elements ("UNEs"):

That's 1,575 pages and 6,770 footnotes worth of regulation in just three orders. This obviously does not count the dozens of other rules and clarifications the FCC issued to implement other parts of the Telecom Act. Nor does it include the hundreds of additional rules issued by state public utility commissions (PUCs), who actually received expanded authority under some of these FCC regulatory orders.

Again, this was all implemented following the passage of a bill (The Telecom Act) that was supposed to be deregulatory in character !!! But wait, it gets worse.

As Solveig points out below, the always entertaining Peter Huber has a piece in Forbes this week entitled "The Inegalitarian Web" explaining why Net neutrality regulation "is great news for all the telecom lawyers (like me) who get paid far too much to make sense out of idiotic new laws like this one."

Huber notes that NN advocates are trying to make the case that just "a simple two-word law is all we really need--an equal rights amendment for bits" to achieve Internet nirvana. But, in reality, he argues, "It will be a 2 million-word law by the time Congress, the Federal Communications Commission and the courts are done with it. Grand principles always end up as spaghetti in this industry, because they aim to regulate networks that are far more complicated than anything you have ever seen heaped up beside an amusing little glass of chianti."

After explaining how NN would not block Google, Amazon, Microsoft or other major intermediaries from cutting bit-mangagement deals with Akamai or other Net traffic managers, Huber goes on to explain how it's going to be difficult to figure out how to draw lines after that:

"So what will [Net neutrality regs] block? Now, at last, we're getting close to where the lawyers will frolic. What the neutralizers are after is what they call "last mile" and "end user" neutrality. But that only raises two further questions: How long is a mile, and where does it end?

The proposed law would block any Akamai-like technology embedded in the very last switch, the last stretch of wire that links the Net to digital midgets like you and me. That would be any technology that--for a fee--caches content or provides priority routing to speed throughput. But the ban on the fee would apply only if two legal conditions are met. First, the hardware or software that gives preference to some bits over others would have to be situated close to us midgets. Second, the fee would be banned only if it was going to be charged to someone quite far away. Exactly how close and how far, no one knows. Give us five or ten years at the FCC and in the courts and we lawyers will find out for you. Do you follow the arcane distinctions here?"

Of course, the NN proponents tell us not to worry about any of this. Just trust the friendly folks down at the FCC to use their collective wisdom to define "network discriminiation" and come up with an perfectly efficient set of regulations to govern the high-speed networks of the future. It's all so simple! (Right.)

Democrats Abandoning the First Amendment, Part 2: Regulating "Excessive Violence" on TV

In Part 1 of this series, I argued that the Democratic Party seems to be gradually abandoning whatever claim it once had to being the party of the First Amendment. Regrettably, examples of Democrats selling out the First Amendment are becoming more prevalent and the few champions of freedom of speech and expression left in the party are getting more difficult to find.

For example, in my previous essay, I documented how Democratic politicians were leading the charge to reinstitute the so-called Fairness Doctrine. In today's entry I will discuss how Democrats are now working hand-in-hand with Republicans to orchestrate what would constitute the most significant expansion of content regulation in decades--the regulation of "excessive violence" on television.

Democrats Abandoning the First Amendment, Part 1: The Fairness Doctrine

The idea that the Democrats are the party of free speech and the great protectors of our nation's First Amendment heritage has always been a bit of a myth. In reality, when you study battles over freedom of speech and expression throughout American history you quickly come to realize that there are plenty of people in both parties would like to serve as the den mothers of the American citizenry. That being said, it is generally true that there have been a few more voices in the Democratic party willing to stand in opposition to governmental attempts to regulate speech in the past.

But I'm starting to wonder where even that handful of First Amendment champions has gone. Sadly, examples of Democrats selling out the First Amendment are becoming so common that I've decided to start a new series to highlight recent examples of Dems actually leading the charge for increased government regulation of speech and expression. I want to stress that I'm not trying to pick on Democrats here, rather, I'm just trying to point out that--unless there is a sea change in their approach to these issues by Democrats in coming months and years--both parties now appear to be singing out of the same pro-regulatory hymnal. This constitutes an ominous threat to the future of free expression.

Today, as part of this new series, I'll be focusing on the Democratic-led efforts to revive the hideously misnamed "Fairness Doctrine."

My favorite press critic, Jack Shafer of Slate, penned a fun piece last week entitled "The Case fo Killing the FCC and Selling Off the Spectrum." The essay builds heavily on the work of Tom Hazlett and Peter Huber, two fine libertarian minds that many of us here at PFF admire. Here's some of what Shafer has to say:

"Although today's FCC is nowhere near as controlling as earlier FCCs, it still treats the radio spectrum like a scarce resource that its bureaucrats must manage for the "public good," even though the government's scarcity argument has been a joke for half a century or longer. The almost uniformly accepted modern view is that information-carrying capacity of the airwaves isn't static, that capacity is a function of technology and design architecture that inventors and entrepreneurs throw at spectrum. To paraphrase this forward-thinking 1994 paper, the old ideas about spectrum capacity are out, and new ones about spectrum efficiency are in.
...

Technology alone can't bring the spectrum feast to entrepreneurs and consumers. More capitalism--not less--charts the path to abundance. Hazlett and others, going back to economist Ronald H. Coase in 1959, have advocated the establishment of spectrum property rights and would leave it to the market to reallocate the airwaves to the highest bidders. Such a price system would tend to encourage the further expansion of spectrum capacity."

Skrzycki notes that on-board communications, navigation and entertainment systems are gaining in popularity. For example, GM's "OnStar" system is now being countered by "Sync," which is Ford's new offering that is being developed in partnership with Microsoft. (I saw a demo of it out at CES this year and it is very cool. It allows the music from a PC in your house to be zapped directly to your car as soon as you pull in the garage). And many other auto makers currently integrate such systems into their cars, or at least plan to in the near future.

But the Center for Auto Safety claims that this is all just a disaster waiting to happen and want the government to regulate to restrict this the use of these technologies within our cars:

Bret Swanson of The Discovery Institute has an important piece on Net Neutrality in today's Wall Street Journal entitled "The Coming Exaflood." He's refering to the increasing flood of exabyte-level traffic (especially from high-def video) that could begin clogging the Net in coming years unless broadband networks are built out and upgraded to handle it. He states:

"[Net neutrality supporters] now want to repeat all the investment-killing mistakes of the late 1990s, in the form of new legislation and FCC regulation... This ignores the experience of the recent past -- and worse, the needs of the future.

Think of this. Each year the original content on the world's radio, cable and broadcast television channels adds up to about 75 petabytes of data -- or, 10 to the 15th power. If current estimates are correct, the two-year-old YouTube streams that much data in about three months. But a shift to high-definition video clips by YouTube users would flood the Internet with enough data to more than double the traffic of the entire cybersphere. And YouTube is just one company with one application that is itself only in its infancy. Given the growth of video cameras around the world, we could soon produce five exabytes of amateur video annually. Upgrades to high-definition will in time increase that number by another order of magnitude to some 50 exabytes or more, or 10 times the Internet's current yearly traffic.

We will increasingly share these videos with the world. And even if we do not share them, we will back them up at remote data storage facilities. I just began using a service called Mozy that each night at 3 a.m. automatically scans and backs up the gigabytes worth of documents and photos on my PCs. My home computers are now mirrored at a data center in Utah. One way or another, these videos will thus traverse the net at least once, and possibly, in the case of a YouTube hit, hundreds of thousands of times.